On June 6, 2018, the general counsel of the National Labor Relations Board, Peter B. Robb, issued a memorandum designed to provide guidance to the various regions of the NLRB with regard to the recently decided case of The Boeing Company, 365 NLRB No. 154 (December 14, 2017). His memorandum also provides practical guidance for employers with regard to the creation and enforcement of rules in the workplace in the future.
The NLRB decision in Boeing established a new standard for determining the lawfulness of facially neutral employee handbook rules. The decision sets forth three categories of rules. They are (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are plainly unlawful to maintain. In his memorandum, NLRB General Counsel Robb sets forth in which category typical employee handbook rules would fall.
In category 1 are work rules that are generally lawful for an employer to maintain. These are generally lawful because, when reasonably interpreted, the rule does not prohibit or interfere with the exercise of Section 7 rights or because any adverse impact of the rule is outweighed by the business justification. This category includes: civility rules, no-photography and no recording rules, rules against insubordination, rules concerning non-cooperation or on-the-job conduct that adversely affects operations, disruptive behavior rules, rules protecting confidential, proprietary, and customer information or documents, rules against defamation or misrepresentation, rules against using employer logos or intellectual property, rules requiring authorization to speak for the company, and rules banning disloyalty, nepotism, or self-enrichment.
In category 2, the rules are not obviously lawful or unlawful and thus warrant individualized scrutiny to determine whether the rule would interfere with protected rights and, if so, whether the legitimate justification would outweigh such impact. Some possible examples of category 2 rules are: broad conflict of interest rules that do not specifically target fraud and self-enrichment, confidentiality rules encompassing employer business or employee information as opposed to rules regarding customer or proprietary information, rules regarding disparagement or criticism of the employer as opposed to employees, rules regarding the use of the employer’s name as opposed to employer logo/trademark rules, rules generally restricting speech to the media or third parties as opposed to rules restricting speech to the media on the employer’s behalf, rules banning off duty conduct that might harm the employer as opposed to rules banning insubordination or disruptive conduct at work, and rules against making false or inaccurate statements as opposed to rules against making defamatory statements.
Finally, category 3 is for rules that are unlawful to maintain. In this category are confidentiality rules specifically regarding wages, benefits, or working conditions. Also in this category are rules expressly prohibiting discussion of working conditions or other terms and conditions of employment, and rules against joining outside organizations or voting on matters concerning the employer.
Robb’s memorandum specifically noted that the new standard, unlike the old standard, balances the interest of employees to be able to exercise Section 7 rights with the employer’s right to maintain discipline and productivity in the workplace. Handbook rules will no longer be analyzed as to whether they could be interpreted as covering Section 7 activity but instead would only be unlawful if the handbook rule would be interpreted to interfere with Section 7 activity. In addition, Robb instructed the Regional Offices that ambiguities in rules will no longer be interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.
This is a significant change in the NLRB’s approach toward employer work rules, which will result in more facially neutral handbook rules being found lawful. Employers are well-advised to review this memorandum (available on the Board’s website) and its many examples as they draft or update handbooks.